SUPREME COURT.

Press, Volume XXII, Issue 2705, 9 April 1874, Page 2

SUPREME COURT.

GRIM NAL SESSIONS.

: Wednesday,' April 8. j [Before His Honor Mr Justice Ore—on.] The quarterly.; sittings of the Siipreme Court opened yesterday at II a.m.. '( , The following gentlemen were sworn In as the * '■•■ ' ! Grand Jury :— Messrs J. Birch (foreman), J. M£ Hey'wood, P. Cunningham, E. G. Griffiths, 8. 8. Field, J. Shand, W. Gray, W. S» Robinson, J. D. Macpherson, A. Hornbrook, J. Bra-* bazbn, W. Minchio, D. Craig, H. :B. Huddleaton, and H. Hawkins. ' * /,/ \ His Honor then proceeded to dejiyer the following * , ' I ■~'■ charge:-— J Gentlemen op the Grand JTJsr,f-' The calendar presents about the average amount of crime. We have not the usual number of committals for obtaining j money j by means of valueless cheques, nor have we | any casebf assault I hut we "have charges of grare crimes—forgery, perjury, and bigamy. The last is a crime of great magnitude and of very frequent occurrence in the colony, but generally difficult of proof, from the necessity of proving the two marriages, and the identity of the parties concerned. When we consider the facility for the commission of the crime afforded by the migratory habits of jmen in the .colony, and the deep and irreparable injury done to the reputed wives, it is,somewbat surprising that parents and guardians are found willing to give their consent; to the marriage of their children and wards with men cf whose antecedents and previous history , they know little'or nothing.' Gentlemen, the only case to *ii?hich I think'it heceJEfflary to. advert particularly; is one in which two persons—a mother of a missing child, and.a man named Brown, have been committed upon a charge of infanticide.; The facts as they appear from the depositions are shortly these: that the mother at first denied that! she had been delivered of a Child, and Brown, who was in the room with her, also denied it; but on finding that the Inspector off Police bad indubitable proof of the fact| she adnritted it,, saying that the child had been born dead, and that she bad burnt it. The body of the child has not been found, although diligent search for it has been made; and, under the circumstances, the Crown Prosecutor has rightly judged thata prosecution for infant** cide must fail, and that the proper course is .to-indict for endeavoring to conceal- the birth: of j the child by a secret disposition of the body. Ifc was laid down by Loijd Hale, from, the fact of prisoners having beencdh-' victed and executed for the murder of persons who were afterwards found to be alive, that no person should be convicted of murder or manslaughter, unless the fact were proved to be ddW, or at least the body found dead. - This fble has since been foil owed, therefore in a case like the present, wheje the body has not been found, there could be no conviction of infanticide, unless possibly upon the confession of the mother, if she had confessed.' She could not even be called upon to account f6r the non-appearance of her child, or to say where it is. Her confession is good in law, accompanied as it is by confirmatory evidence, as against herself. But it goes no further than that she burnt thectaijd,; after it

had been still-born. Even had bercqnfession tended to implicate Brown, it would hot have been admissable evidence against him. But she not only fails to implicate him, she denies positively that 'he-knew aoythirjg about the matter. The indictment is founded upon the Offences Against' the Persons Act, 1867, section 57, which proi vides that '•' if any womanisltali he delivered of a child, every person who Shall by secret disposition * of . the- dead body of of the said child, whether such child diebefore or after its birth, endeavour to conceal the birth thereof, shall be guilty of ; anu> demeanour," Sea. You perceive from the language of the Act, that before you can find a true bill against either of the defendants, you must be satisfied, not only of the birth Of the child—of which there is abundant evidence, independently of the mother's confession—but also of the endeavor to conceal the birth, as specified in the indictment. Of this there is do evidence, save the confession of the female defendant. And although there is evidence to* some extent confirmatory of her eonfes —on, and therefore I think you may accept it as proof against herself, you can harily, I __ak, find a*troe bill

against Brown, however strongly you may suspect from the circurnfttftnees that will be detailed in evidence before you, as to hia conduct and position about the time of the birth Of, the child, and shortly after, that he was assisting in the secret disposition of the body. "Gentlemen, it is unnecessary for mc to detain you longer. If you will now be good ienough to retire to your room, the bills will be laid before you ; .and if there be no fresh committal, I hope to be able to dis charge you to-day. tbub bills. During the day the Grand Jury returned into Court with true bills in the following cases:—Regina v. John Wilmshurst, larceny as a bailee ; Regina v. W. J. Nelson, larceny in a dwelling-house; Regina v. Richard Tubman, obtaining a valuable Becurity by falsa pretences; Regina v.Louisa Marion Sinclair and Charles Brown, endeavouring to conceid the birth of a child ; Regina v. John Hen nessy, perjury; Begin* v. Elijah Hyme_ bigamy. '

LABCENY AS A BAILEE. John Wilmshurst, late surgeon of tho Isles of the South, was charged with bavins fraudulently appropriated to hi«ownn ß o a quantity of medical comforts during tha voyage from London to Lyttelton, the same medical comforts being the property of the captain of the ship and also of the New Zealand Shipping Company, The prisoner pleaded " Not Gnilty." Mr Duncan prosecuted on behalf of the Crown.

Mr George Harper appeared to defend the prisoner. Mr Wm. Ormandy was chosen foreman of the petty jury:

Mr Duncan having stated the case for tha Crown, called the following evidence ;*- John Le B. LeConteur—l am captain of the ship Isles of the South. We sailed from London on the 26th October, 1878 and arrived in Lyttelton on the 2nd Fehroarr 1874. The prisoner was surgeon-superin-tendent of the ship during the voyage. As such he had control over the medic*) com. forts by requisition to mc. During tho months of October and November a number of requisitions were sent In for medical comforts by the prisoner, and tbey were issued by the steward under my orders. They comprised brandy, gin, port aud sherry wine, and stout. I had occasion to speak to the prisoner during the voyage respectiog the medical comforts. I mentioned to him in December how sorry I was to hear a report circulated in the «hip that he was selling medical comforts. This he denied and I said I hoped his denial was correct. He attributed the charge to the malice of some one on board. I still heard these reports which kept coming to ray ears On Sunday, January 4th, 1874, before making a general muster of the itnraigrauts for inspection, I told the doctor that it was my intention to ask them if they had purchased medical comforts from him. He replied that he was very happy that I was going ; to auk them. I asked the immigrants in his presence and they all denied it. After the inspection was over I had a few words in my cabin with the doctor, when he confessed to having sold . one bottle of stout. As ha hare done it unintentionally—by buying n it from the steward and afterwards selling it to the immigrants, but I called his attention to tbe fact that this could not be done; and also that this did not remove the heinpUßnesa of the offence. He said he intended to pay tho steward for another bottle of porter to replace the one he had sold, butit had/slipped his memory. > He then tendered mc a soil- ' ling as the price of the bottle he had sold. I refused, and said as it was a first>,o_encel would look it over, and he could" put the shilling iv the orphans'box, which he did. Some two hours after this one of the p&ssen. Hers requested to see mc, and cams into my cabin; I took his deposition on oath, in the logbook, which lie ' signed. It is here now, with his signature attached. I afterwards had afflOnveras. tion with the.prisoner,, in January J. think, but Ido not know the date. I read to the doctor the deposition of the passenger which I had taken down. The prisoner still denied all the charges except that as: regarded tho one bottle of stout, the sale of which ho had confessed to mc. I charged him with , Belling the imedical comforts issued by mc. • The medical comforts I charged him with ( selling were brandy, gin, sherry, port, and stout. I told bim that I was satisfied thut he was doing it, and that I would in fatalo issue the liquors required as medical comforts on his requisition, but that tha steward should distribute them to the' passenger! I named therein, so as the doctor would not have the handling oi the liquors. 'This wi(i tfohe from January 4th till the arrival of tho vessel in Lyttelton. In fact, tbe doctor was suspended. I had further commuuicatious with the doctor in writing. I have copied of the letter I wrote, 'and also the answer. [Mr Harper objected to the witness producing the copy of his letter. J I bold in my hind a * lettef • received from the " prisoner *in "answer ■•to oue I sent to him. I know the prisoner's handwriting. The letter is in hia hsndwrit* ; ing.' [Letter;put in and read.j* After receiving that letter, I did not have a conversation with the prisoner .until the 14th . January. The conversation was in respect to an immigrant who came' to mc for medical comforts, the doctor having told him that the whole comforts were exhausted, 1 gave'the man some out of my own private as his motber-ia-law, for whom he wanted it, had been mainly kept alive during the voyage by stimulants. I told the prisoner of the positive information I had of his having sold the medical comforts. He still asserted that these reports were tbe .fabrications of his enemieii. Ma*Uers re* * mamed in this state until Monday, the 19th January, when the •prisoner voluntarily came into my cabin, and placed in my hands 1 , the sum of £8 10s, which he said was for medical comforts cold by him to the immigrants. He gave mc the names of the passengers from whom he had received the money, that) was, aa far as he could remember. The medical com-forta-were Under my charge: as captain of the ship-and were issued to the prisoner in bottle* under the N.Z. Shipping Company who were the owners of the ship for the time being. I never gave the prisoner permission to sell any medical comforts to the passengers, nor had he power from the N. Z. Shipping Company to do so. Mr Harper cross-examined the witness at Boine length. , . - Joseph Wilson, steward of the ship, gave evidence as ta the issue qt the, medical comforts by him on the voyage undjr requisition of the doctor. •.. t . : , --, "T" ■Mr Duncan put iv the certificate of in-

corporation vi m-s.«. **. duich' u s signedby Mr Deuhakt, the registrar of jouit stock companies.'"'' f !y . Robert Paton j-?l,waß -passenger on board the Isles of the South. Captain Le Conteur was in charge of the ship. The prisoner whbHio ! doctor of the: ship* voyage I bought some gin, brandy, porter from the prisoner. I think this'"was aboat i week after we left hdmernrporchased \b bottle of stout -fromfchesdoctor. I paid*™ either Is or 6d, I don't know which, as l do' hot recollect wberlier it was a small or -large one. -bout a week after this I bougbt a bottle of wine or stout." In November or December I got a bottle' of bran#f from t&s doctor, and-paid I think 4s 6d fifrit. I purchased a bottle of ginfromlhe prisoner. Daring- the two months of • Ncwi&nber ana December I think I gotaMiifeha_ a dozen bottles of stoat. I rebft'embßri the captatn of no if we had tougbf.drinkof the doctor." t denied it; as I xtboagatl might' get into trouble about titt> fhe pn« tain that I had boaght medical COmfOrtS from him. This was partly the reason why i denied having/doh^'soi n <■ I' , Cross-ttmmed by Mr m^T 1 ,#*. * good many medical comforts without paying for them. 1 a "? a "" doctor on the -firs'-, occasion to sell mo a Dottle of stout, as Idid not ._e to tfke so much without paying tor them, as my mother-in-law was very ill, aa* requireda great deal. The doctor «*"*-»■ *»*£ fell, ■ and I pressed him to do go. A weu after the captain asked ua if we ma bought any liquor from the doctor, ij prisoner said be intended to pay the moaey over to the captain; , -'

""fiemry Biraingham—Jt was a passenger by the Isles "of the'r3o&_v. The prisoner was — Hfc_*gepjn*BnperiirhOT V v ßto*B&&%^iZ*stf r H Hud *~~ — purchase" from the pr-oner early in' December. The .first purchase was two bottles of stout. The doctor was in the dispensary. J paid for the stout. A fe"w days afterwards I purchased two more, and paid for it. I • - most have purchased stoat about twelve times during the voyage. T purchased twenty-six bottles of porter, and . also about 7s 6d-worth of brandy. Before the captain enquired whether we had purchased any , liquor from the doctor, the prisoner told us •-,;;« not to acquaint the captain: with our having done so.

r7 c- AlfredOblville~-J wais a passenger by the Isles of the Sonth. I purchased bottles of stout and wine during the voyage from the . prisoner, and paid him for them. .. ',_. -. This closed the ease for the Crown. Mr Harper submitted that there was ho ease to go to the jury, as there was no evitification of the property as Bhip's stores; secondly, that under the Passenger Act ■ tbe surgeon superintendent of. an: immigrant vessel had absolute control over the medical comforts, and that he was therefore not in the character of a bailee, but rather ,•: -tb—t of — trustee to render an account of ■: what was done. Thirdly, that under the same Act the captain had no power over the surgeon superintendents Under the Act the eurgeon being clothed with great discretionary power, could not be treated as a criminal for having given away or disposed of any of the goods, but it could only be ; treated as a civil process, or by recovery of a penalty, as provided under the Act of 1855. . ; The 43r- section provided that medical comforts should be placed on board the ship and should be under the control of the [medical officer, and issued, at his discretion. The Act was clear, as it stated that any person - <ellingspirits or other liquors oa board a ship sailing under it was liable to a penalty. Therefore it was that he contended that no >___nal prosecution against the: prisoner could lie. - |_T_e learned counsel cited cases _tsupport of this view.}•..: His Honor said that he would not/ withdraw the case from the jury. f is i Mri Harper would then, if the verdict went against his-client, move an arrest of judgstent on the points raised by him. , His Honor would look into the matter, and if the points raised by Mr Harper were tenable, would reserve the case for the Court of Appeal, but under the circumstances could act withdraw the case from the;juryj; Counsel on both sides having addressed the

:v<ifaxji~'r~''i -■ ;■. v:,: ~* - a" His Honor said that he should have liked fo have taken time to consider the points raised by Mr Harper, but he did not like to keep the jury locked up all night while considering the points. He therefore-should direct the jury that the prisoner was a bailee. The points raised, however, would of course •reeeiFe*«tteotion. ~.'.....<■. ■ ~- , v .jß»rHonor then,.,summed up,commenting on ithelevidence at some, length. The jury, after a short retirement, came .i, intojflourt with a verdict of V Guilty." Hifl Honor said he would not pass sentence .*s ttis evening,, but would defer doing so Until ti»e end of the session. Mr Harper said that _he proposed to call •evidence as to the previous character of the prisoner. He would call Mr March. " John Edwin am Emigration OfilcerV The commissioners' report on the Blue Jacket and the Indian Empire, of which ■ ships the prisoner was surgeon, was satisfac- : •■■■ :.'••■".-■ r. i The prisoner was th en removed,. _nd the Court adjourned until 10 am this day, when the case of Regina v Nelson, larceny in a dwelling house, will be taken.,• : ..